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When you were abused, your boundaries, your right to say no, your sense of control in the world, were violated. You were powerless. The abuse humiliated you, gave you the message that you were of little value. Nothing you did could stop it. If you told someone about what was happening to you, they probably ignored you, said you made it up, or told you to forget it. They may have blamed you. Your reality was denied or twisted and you felt crazy. [1]
Prior to the enactment of the Evidence Amendment Act 1989, successfully prosecuted cases of child sexual abuse were comparatively rare. One of the main reasons for this rarity was the law's stringent evidential requirements of children. These were based on society's adherence to the myth which is spelt out in the above quote, that children are prone to invention, fantasy and a distortion of reality. Following some of the recommendations of the Report of the Advisory Committee on the Investigation, Detection and Prosecution of Offences Against Children in 1988, the law was changed to assist child complainants to give evidence.
The Evidence Amendment Act 1989 stipulates how a child's evidence can be heard, where it is to be heard and if it is to be heard by the courts. The amendment was put in place both to assist the courts and police in their prosecution of child abusers and to support the basic tenet of criminal law in protecting the rights of an accused - that everyone is presumed innocent until proven guilty.
Section 3 of the Evidence Amendment Act 1989 added to the principal Act new sections 23C - 23I, designed to facilitate the giving of evidence by child complainants and to do away with some discredited notions concerning the quality of their evidence.[2]
This Act and the Regulations affect issues such as legal competency of child witnesses within both the formal videotaped interview and courtroom appearances, the provision of different modes by which children may present evidence and be cross examined in cases, and the provision and rules for the evidence of expert witnesses to be received by the Court.
This article examines two of the contentious legal issues that have been highlighted and widely debated as a consequence of these changes to the law: the competency of a child to act as a witness and their credibility when they do. These issues are central to the giving back of “power” and a “sense of control” to child victims of sexual assault. This article concludes that the reforms do not go far enough. Certainly these reforms are revolutionary in this area of child sexual abuse, when one compares them to previous statutory and common law protections and also overseas jurisdictions; however, not all the stumbling blocks, or hurdles that have been placed in the path of child victims have been removed.
With regard to child witnesses, competency is about the essential issue of children being permitted to give evidence, given their tender years and the basic question of whether they have sufficient intellectual development to give a rational account, and at the same time understand the obligation to tell the truth.
Historically, children were deemed deficient in these abilities and automatically were excluded from giving testimony in any court hearing. In 1779 in R v Brasier the court determined that
there is no precise or fixed rule as to the time within which infants are excluded from giving evidence ... the court must pose questions to determine if the child understands the danger and impiety of falsehood.[3]
This ruling paved the way for an important shift. Instead of relying primarily on a determination of the competence (or incompetence) of the child witness, courts began to place more emphasis on the role of the trier of fact in assessing the credibility of the witness. The judge or jury was given more latitude in assessing the child witness's capacity and intelligence, his or her understanding of the difference between truth and lies, and his or her comprehension of the obligation to speak the truth.
New Zealand followed the decision in Brasier[4] and the then section 4 Criminal Law Amendment Act 1885 (UK) permitting children to give unsworn testimony. However, in 1894, the Oaths Amendment Act section 3[5] differentiated the way that New Zealand accepted the oral unsworn testimony of children in both civil and criminal cases from the practices and law in the United Kingdom.
Prior to the advent of the Evidence Amendment Act 1989, the competency test in cases involving child sexual abuse centred on the child's ability to fulfil the requirements of section 13 of the Oaths and Declarations Act before giving oral evidence in a Court. This still applies to child witnesses in cases involving sexual assault as these are not covered by the new reforming evidence amendment.
For example, in a 1989 case under the old rules involving an 11-year-old girl, the child gave a declaration under section 13 of the Oaths and Declarations Act after the judge had established that she understood the declaration.[6] On appeal against conviction and sentence one of the main grounds advanced was that the trial judge had failed to warn the jury as to the need to scrutinise with special care the evidence of young children.
In a 1991 case involving a 4-year-old child, an appeal against conviction was filed based mainly on the tender age of the complainant and her competence to give evidence.[7] In contrast to the 1989 case, the judge dispensed entirely with the oath and proceeded gently to question the child in the jury's presence to ascertain whether she understood the necessity to tell the truth. This unsuccessful appeal was argued on the basis that the judge did not draw to the child's attention the importance or solemnity of the occasion, nor did he fully test the child's comprehension of truth, lies and promises.
The Evidence Amendment Act 1989 introduced a new aspect to the competency test, while at the same time maintaining the test itself. This competency test is applied to situations where sexual abuse cases involve child witnesses who give their evidence-in-chief by way of videotape recording and not orally before the court. In this respect it appears to codify the test laid down and traditionally applied by judges, as in the 1991 case described above,[8] rather than the actual statutory provisions applying to witnesses giving oral evidence. Children thus now undertake the prescribed competency test with a trained child interviewer on videotape which later can be admitted into court as evidence-in-chief.
There is however continuing debate about the need (or otherwise) to retain the test of competence, now embodied within the Evidence (Videotaping of Child Complainants) Regulations 1990 of the Evidence Amendment Act 1989.
The interviewer is bound by Regulation 5(1) in conducting an interview which shows a disclosure of child abuse. The process must follow the required regulatory form for presentation as evidence to a court. The Evidence (Videotaping of Child Complainants) Regulations 1990 provides:
Regulation 5. Matters to be Recorded -
(1) The videotape shall show the following matters:
(a) The interviewer stating the date, and the time at which the recording starts:
(b) Each person present (including the complainant) identifying himself or herself:
(c) The interviewer -
(i) Determining that the complainant understands the necessity to tell the truth; and
(ii) Obtaining from the complainant a promise to tell the truth, where the interviewer is satisfied that the complainant is capable of giving, and willing to give, a promise to that effect: ...
The fundamental purpose of the Evidence Amendment Act 1989 is to provide for ways to assist child complainants in sexual abuse cases to give their evidence-in-chief and mitigate the stress of recounting of the substance of the complaint in repeated interviews and court appearances. This is done through the use of pre-recorded video tape interviews, closed circuit television and screening devices. These measures have become the Achilles heel targeted by the defence. Regulation 5(1)(c) appears to be the initial focus of potential defence counsel attack.
These new provisions, together with relevant provisions in the Crimes Act 1961 and Summary Proceedings Act 1957, allow both prosecution and defence to apply for directions and orders prior to the trial to enable the proceedings to be conducted in a manner appropriate to the interests of child complainants and justice generally.
The requirement of Regulation 5(1)(c)(i)and (ii), that an interviewer is in effect put into the shoes of the judge by the interviewer having to obtain from the child a promise to tell the truth (showing legal competency as a substitute for section 13 of the Oaths and Declarations Act 1957), has been attacked by many defence lawyers.
In R v Accused [9] the Court of Appeal did not address any need for the trial judge to examine the child complainant as to competence before admitting the videotaped evidence. In that case the court compared Regulation 5(1)(c) with section 13 of the Oaths and Declarations Act 1957 and appeared to imply that the court now took the view that the interviewer assumed the role formerly taken by the judge in determining a child capable of and/or willing to give a promise to tell the truth. The Court of Appeal adopted the view that the approach to the interpretation of Regulation (1)(c)(i) and (ii) should not be "over-refined and pedantic".[10]
Regulation 5(1)(c)(i) provides that the interviewer must be shown on the videotape whilst determining whether a child understands the need to tell the truth. The Court in R v Accused stated its view of the purpose of the Regulation as being to ensure the satisfaction of the common law requirement of competence.[11] The Court also noted that the Regulations do not specify how the child's understanding of the necessity to tell the truth is to be demonstrated, nor the form that the promise to tell the truth will take.
In R v MEF [12] Wylie J viewed any breach of Regulation 5(1)(c) as rendering the evidence inadmissible as the interviewer was standing in the stead of the Judge. He reiterated the belief that Regulation 5(1)(c) substitutes for section 13 of the Oaths and Declarations Act 1957.
In R v S [13] the admissibility of the evidence of a five-year-old child complainant was at issue, on the basis of the interviewer having failed to meet the requirements of Regulation 5 (1)(c). Hardie Boys J made it clear that he agreed with Wylie J's statement in the case R v MEF ;[14] however he went on to state that, notwithstanding the fact that the interviewer on the videotape follows the requirements of the Regulations, the Judge must then also qualify the witness prior to the videotape being shown.
The Judge must in the usual way satisfy himself that the child understands the obligation to tell the truth, and the child must so promise.[15]
Further:
It is to be remembered that the videotape is simply the means by which the child gives evidence. Therefore, as we have explained, before she gives her evidence the Judge must obtain from her the requisite promise to tell the truth. If his questioning demonstrates to him that she is not capable of making that promise and so is not a competent witness, her evidence, including her videotape evidence cannot be received.[16]
It is difficult to follow the reasoning of the Court. Despite the fact that the Court acknowledged that Regulation 5(1)(c) was enacted as in lieu of section 13 of the Oaths and Declarations Act 1957, it expressed the view that, in similar cases at the trial stage, the requirements of section 13 must be met again. A similar view does not appear to have been expressed in other cases appealed prior to R v S.[17] It is submitted that the appropriate (purposive) view is that of Wylie J in R v MEF. [18]
Thus a child complainant in a sexual abuse case gives primary evidence or evidence-in-chief recorded on videotape, with the interviewer ensuring the requirements of Regulation 5(1)(c)(i) and (ii) have been met, namely, that the child understands the difference between truth and lies and can promise appropriately to tell the truth. Those requirements having been met, the child is then liable to cross-examination and re-examination at the trial. On a pre-trial application the judge can view these tapes to satisfy himself or herself that the requirements are met, and can excise any portions of the videotape that in his or her opinion do not meet required evidential standards.
R v Accused[19] involved an appeal against a pre-trial ruling that videotaped evidence of an eight-year-old child complainant be admitted as evidence. During its consideration of Regulation 5(1)(c), the Court examined the following dialogue to assess the competency of the child witness:
Interviewer: “Okay, before we go on any further, I'd just like to ask you if you know what the difference is between truth and lies. Do you know what the difference is?”
Child: “Um, a bit”.
Interviewer: “Bit, how would you explain it?”
Child: “That the truth is, you'd tell, you're not, you're telling them the truth, what, um, what really happened”.
Interviewer: “What really happened?”
Child: “Yeah”.
Interviewer: “And will you tell the truth today?”
Child: “Yes”.[20]
The Court of Appeal accepted this interchange as meeting the requirements. There was no need for the exact words of the Regulation to be used. This liberal approach has continued and was expanded in R v Neho [21] in which the child complainant had indicated her awareness of the difference between truth and lies by nodding her head to a series of questions and this was treated as measuring competence within the regulations.
This agreement to assent to telling the truth by nodding the head was also accepted by the Court of Appeal in R v Crime Appeal[22] and in R v Campbell [23], where the Court held that a promise to tell the truth, obtained from a child sexual abuse complainant in a videotaped interview in the form of "vigorous and unmistakable nodding of her head in assent," complied with Regulation 5(1)(c).[24] However the Court went on to note that the Regulations do not specify how the child's understanding of the necessity to tell the truth is to be demonstrated, nor the form that the promise to tell the truth will take.[25]
The Court accepted that in this case the test of competency was fulfilled by the interviewer under the requirements of Regulation 5(1)(c)(ii) by the complainant's promise to tell the truth. The Court expressly rejected the argument that there was a clear distinction between determining the witness's understanding of the necessity to tell the truth and the interviewer obtaining a promise from the complainant to tell the truth.[26] It appears that the Court took the view that when a child complainant promised to tell the truth, then by rational logic the child complainant has understood the necessity to tell the truth.
If this is so, then the requirements of (ii) presuppose that the requirements of (i) have been met and there appears to be no need for Regulation 5(1)(c)(i). An interviewer is to obtain a promise only “where the interviewer is satisfied that the complainant is capable of giving... a promise” but an interviewer can be satisfied (as outlined) only if they have, inter alia, already determined that the complainant has understood the necessity of telling the truth.
Hardie Boys J in R v S[27] appeared to grapple with the same difficulty. He stated that “[s]ub clause (c) of the Regulation is most unhappily worded”.[28] The Court of Appeal in this case, having come to this understanding in questioning the relevance of the Regulation 5(1)(c)(i), went on to find further support for its discussion in examining the position under section 13 of the Oaths and Declarations Act 1957. The Court noted that, when applying this Act, the judge does not have to establish that the child complainant has a discrete understanding of the necessity to tell the truth.
The Court of Appeal had also considered section 13 in detail in R v Accused .[29] The judge at first instance had asked the child complainant a series of questions which were specific as to the issue of truth, lies and promise. Such questions were included as: "Do you promise to tell the truth?" The child always responded to the questions asked with the positive “yeah” or negative “nah” and always appropriately to the questions. The defence argued that, by dealing with section 13 in this manner, the judge had overlooked the relevant statutory directions in Regulation 5(1)(c)(ii). In considering this point, the Court of Appeal judgment, delivered by Jeffries J, stated that it believed the substance was what mattered, rather than strict adherence to the wording contained in section 13.
The defence in this case also argued that the judge, in asking the questions, did not even approach the issue of testing the comprehension of the child witness, as he did not seek definitions of truth, lies and promise in the detail that was the required threshold of competency. The Court of Appeal was adamant on this issue. Jeffreys J stated:
people of all ages use words correctly to convey meaning in ordinary speech but at the time, if pressed, sometimes cannot give very precise, or even adequate, linguistic definitions.[30]
This observation could be construed as an acknowledgment by the Court that more accurate measures of competency are based in the cognitive approach to child witnesses. In other words, a child may well fail an abstract evaluation of his or her understanding of truth, lies and promise, but excel at demonstrating these concepts at a practical level. Recent research data shows that children as young as four years understand the difference between truth and lies in that they believe that it is “bad” to tell a lie and that it is “good” to tell the truth.[31]
R v S [32] dealt with an appeal as to whether the procedure for determination of competence of a child to tell the truth on videotape was to occur for each and every videotape. This case dealt with the evidence of a child aged four years and eleven months. Hardie Boys J commented on the provisions of section 23C of the Evidence Act and Regulation 5(1)(c) of that Act:
...the words "a promise to tell the truth" are to be understood in the light of subclause (2): the overall “effect” of the promise is what matters .[33]
Further:
It is next necessary to determine whether the videotapes show the obtaining of a promise to tell the truth. In this connection it is important, in the light of some of the evidence, to emphasise that the promise is not to be obtained unless and until the interviewer is satisfied that the child is capable of giving a promise to tell the truth, or a promise to that effect. This requirement, clearly stated in R v Accused (CA 449/91), is fundamental and is not to be watered down. It is not a question of capability relative to age. Either the child is capable or he or she is not.[34]
There have been two areas within the present testing of competence that have drawn criticism. The first of these, used in many defences, is that too much power is given to the interviewers and they may well usurp the role of the judge in establishing competency. The second is that the test of intelligence alone is not appropriate in the taking of evidence of very young children and should be abolished altogether.
Warner stated:
Both the oath test for sworn evidence and the intelligence and understanding test for unsworn evidence have been criticised because they are inconsistent with modern psychological knowledge and practical experience. The ability of children to give sound evidence depends, not upon the moral and religious understanding of the child (the oath test) nor upon the vague concept of intelligence (the understanding and intelligence test for unsworn evidence), but upon the cognitive development that a particular child has reached.[35]
As progressive and modern as the reforms to the Evidence Act 1908 have been, particularly when contrasted with earlier ways courts viewed the testimony of children (requiring that they understand and believe in "hell fire and brimstone"), there are still many protagonists who maintain that these reforms should have gone further in terms of the competency test for child witnesses. They maintain that the test itself is outdated and needs to be completely ousted.
Warner reviewed the Report of the Geddis Committee in New Zealand:
The report of the Geddis Committee has criticised this position, and recommended that as the competency test serves no useful function it should be abandoned leaving the weight placed on the child's testimony to be determined by the trier of fact. It is argued that an exploration of the child's understanding of the truth is not relevant to competency, and there is no basis for an assumption that a child who is unable to understand the duty to speak the truth is unlikely to recount accurately past events. The question of competency does arise with respect to the issue of whether the child's evidence can be conveyed to the court in a manner that can be understood, but here the issue which must also be addressed is the ability of the court to elicit the information the child does possess.[36]
The antagonists of this suggestion to remove the competency test base much of their argument on the premise that children have faulty memories and are prone to lying. Studies have now been concluded which are aimed at scientifically proving the reliability of children's memory and therefore, in effect, their ability to give competent testimony.
Birch stated:
The conclusion must therefore be that the court's time would be better taken up in sifting the testimony of all witnesses in the light of what is now known about mendacity, faulty memory and suggestibility, rather than in removing young witnesses from the court room altogether.[37]
Giving background to this premise are the authors Taylor, Geddis, and Henaghan:
When an adult takes an oath or an affirmation there is no exploration of their understanding of ‘truth’, nor their real acceptance of the duty of speaking that ‘truth’. We are not aware of any evidence that demonstrates a correlation between age and honesty. . . . It is our view that the competency test serves no useful function and should be abandoned. The weight to place on the child's testimony would be determined by the trier of fact. . . . Thus we would contend that an exploration of the child's understanding of truth is not pertinent to the issue of the child's ability to separate fact from fantasy. This is not an issue of competency, it is an issue of reliability.[38]
Test studies to date regarding competency begin with Goodman's study of 1987[39] where three and six-year-old children were asked four questions which mimicked the questions commonly used by judges and police interviewers to assess children's understanding of the differences between truth and lies. The children were also interviewed about a medical visit during which they had received an injection to inoculate them against chicken pox. Children's responses to the truth and lies questions were not significantly related to the accuracy of their accounts of the medical visit. The study concluded that “the legal questions proved to be poor predictors of children's performance”.[40]
Otago University psychologists Pipe, Gee and Wilson[41] reproduced Goodman's findings and also stated that they found that the ability to articulate an understanding of truth and lies did not predict whether or not children made what they might consider an intentional error. Further, this study's final evaluation found no relation between children's responses to legal questions and their willingness to omit from their reports information that they were asked to keep secret.
Bussey concluded in another study that:
Other than to provide additional information to the jury about a child witness' cognitive capabilities that might help in their assessment of the child's credibility as a witness it is difficult to justify the use of the voir dire examination.[42]
It appears that the requirements placed upon the interviewers under the Evidence Act 1908 sections 23A-23I and in particular Regulation 5(1) at least partially replicate the courtroom voir dire. The burden is thus placed first on the interviewer in demonstrating that the child witness has the competency; and second on the judge who by remote control has the final say.
Pipe summed up the psychological developmental viewpoint stating:
The cognitive abilities required to differentiate and define abstract notions about the truth and about lies do not seem to be strongly related to those which ensure reliability in recounting an event. It remains possible, of course, that securing a promise to tell the truth from a young child will increase the probability that they will give an accurate account of what has happened. There is, however, no evidence to date to support such an expectation.[43]
The test of competency in relation to child witnesses has a long history, with arguments as to its validity continuing throughout. Issues such as children's ability to tell the truth, and the validity of their promise to do so, also continue to be debated, with especial emphasis on whether or not the test should remain at all. Those interviewers who are required to demonstrate that a child understands these issues and the judges who then have to decide if this understanding has been adequately demonstrated, or indeed who determine it for themselves, are not given “how” they are to ascertain this, just “why”. Regulation 5(1)(c) was enacted to make it easier for child witnesses to give evidence, but in effect it creates a new burden for both interviewer and judge in demonstrating and determining its requirements.
Children's apparent lack of credibility has as much to do with the competence of adults to relate to and communicate with children as it does with children's abilities to remember and relate their experiences accurately.[44]
There are two approaches commonly taken in defending cases of child assault and abuse. The first attacks the validity of the competency test in the videotaped interview with the child complainant as required under Regulation 5(1)(c) and section 23E(2) as previously discussed. The second attacks the manner in which that interview was conducted and the interviewing practices of those in charge.
The interviewing of a child complainant needs to be examined for it affects the overall credibility of the charge of which they are the centre. The interview deals with the child complainant in a setting other than the traditional courtroom venue, and as such is open to rigorous checks, cross-examination, and criticism. Interviewing practices therefore are a major linchpin of both prosecution and defence cases.
Interviewers are now those persons trained and employed by the New Zealand Children and Young Persons Service, Specialists Services Division. These persons have been accepted by the courts as expert in the specialised area of interviewing children for both social and court intervention.
The Evidence Act 1908 does not specify the way in which a videotape is to be prepared, or the way in which the recorded interviews are to be conducted. The Regulations evince the rules predicated by section 23I of the Evidence Act, but nowhere within the Act or Regulations are the necessary qualifications and skills for interviewers specified. There is a general presumption that the interviewer has the ability to judge whether the child complainant has the requisite understanding of truth, lies and a promise as stated in Regulation 5 (1)(c).
It is the process of the evidential interview that is liable to the defence strategy of attack, by assertion of “contamination” theories by the defence. This goes to the credibility of the child and the interviewer. The focus in relation to the credibility of a child witness is on the role of the interviewers of child complainants, their expertise and the manner in which these interviews are conducted.
As has been stated earlier, reliability of children as witnesses has traditionally been seen as lacking, or by some commentators, absent, purely because they are children. They have been said to be consummate liars and manipulators who jettison these unfortunate characteristics on maturation. Pigot J recognised this in the 1990 Report on Child Witnesses when he stated:
Courts still prefer to rely on the accumulated wisdom of the past and have not absorbed or applied the fruits of modern research into child psychology.[45]
There have also been studies showing that there is no clear relationship between age and honesty, and, in a situation of prejudice, children are likely to be better witnesses than adults. [46] However, this is all relative to the manner in which children have been asked questions. Free recall and general questioning elicit more limited responses from children, than do more specific questioning techniques, but interviewers who use the latter techniques are then liable to criticism in that these can be construed as leading questions. However, there are major differences between correctly phrased specific questions and leading questions - differences which the lay person cannot always easily identify. Spencer and Flin report:
There is little doubt that the quality of a witness's report is dependent on the communication skills of the interviewer. Any specific questioning will increase the likelihood of incorrect responses and the rate of error appears to be directly related to the complexity of the questions posed. But even with simple sentence constructions, the power of language is easily demonstrated, asking "Did you see a knife?" is less suggestive than "Did you see the knife?" and even small children may be responsive to the change from the indefinite to definite article. (Dale et al. 1978). It is well known that leading questions can be particularly hazardous and the risk of suggestibility [exists] ...whilst there is no doubt that children can be influenced by suggestion, it must be emphasised that adults too are notoriously susceptible to suggestive and leading questions (Gudjonsson and Clark 1986; Loftus et al. 1989).[47]
The theory of contamination or “pollution” of the credibility of children is based on the premise that repeated interviews and the use of leading questions by official interviewers can create a role play or “rote” learning situation so that children re-enact and repeat facts which can then form the basis of false allegations. Parents, from feelings of powerlessness and guilt, can often perpetuate this cycle by their use of leading questions.
The 1989-1990 Australian case of “Mr Bubbles” highlights this type of contamination that can be levelled by the defence at interviewers and those involved in prosecution. Mr and Mrs Deren and two other workers were charged with the sexual assault of seventeen children, all under the age of six, who attended a suburban kindergarten. The children's allegations of abuse centred on the spa bath at the kindergarten, hence the “Mr Bubbles” title. The allegations were investigated by police and a number of interviews were carried out by a police officer with very little experience in interviewing young children. The allegations made by the police, as a result of the investigation, involved such acts as the videotaping of children in pornographic poses, taking children from the kindergarten property and committing various sexual acts of indecency. All charges failed at the depositions hearing stage, and the main criticism was levelled at the police interviewers. This criticism involved both their interviewing practices and their directions to parents of complainant children.
Contrasted with this case is the New Zealand case of R v Ellis (or known in the media as the Christchurch Civic Creche case)[48] in which 118 children were interviewed by specialist interviewers, under the guidelines of the Evidence Amendment Act 1989 and the Regulations, regarding disclosure of multiple sexual abuse by Ellis of children in his care at the creche. Of the 118 children there were 11 complainants who chose to continue their charges. Ellis was convicted on the evidence of six children and 16 charges. The main defence strategy in this case, as in the Mr Bubbles case, was to assert that the testimony of all complainants was contaminated by the way in which the interviewers had “led” the children in the videotaped interview sessions, and also that parents had “put words in their children's mouths”.
Parallels between the two cases:
Ellis Bubbles
Pre-school creche kindergarten
Children under 6 years children under 6 years
118 children : 45 reduced to 29 17 children: 52 charges
charges
competence of children to competence of children to testify testify challenged: failed challenged: succeeded
reliability of children's testimony reliability of children's testimony challenged by defence of challenged by defence of contamination contamination
interviewing techniques challenged interviewing techniques challenged on reliability & contamination on reliability and contamination
media backlash about media backlash about unsuccessful conviction prosecution
issues of memory reliability: issues of memory reliability: currentand recovered in media current and recovered in media
focus focus
overseas expert witness testifies overseas expert witness testifies children too young to be children too young to be competent
competent witnesses witnesses.
It appears that the reforms of the New Zealand Evidence Amendment Act 1989 were such as to contribute to a successful conclusion in the similar case of Ellis; however the backlash by media was just as great as in the Mr Bubbles case. The issues of contamination and competence were raised despite the safeguards put in place by the legislation.
Another area of supposed unreliability in the child witness is that they, more than adults, are highly suggestible and prone to fantasising into reality. As recently as 1987, in the House of Lords debate on the Criminal Justice Bill, Lord Paget, an English lawyer stated:
Children do not speak the truth naturally. In the normal way children live so much in the world of their imagination. Another point is the tremendous and emotional suggestibility of children.[49]
Spencer and Flin disagree with this, arguing that “[t]hese attitudes are derived from cultural and legal mythology”.[50] Further, the research of psychologists Gudjonsson and Clark published in 1986 rightly concludes that adults are also liable to be highly suggestible. This study and others point out that children and adults are likely to be influenced by leading questions for a variety of reasons (referring to reports outlined in Spencer and Flin and quoted above).[51]
Psychologists continue their efforts to research this area of suggestibility, although there are different approaches within the research taken. Ceci and Bruck[52] have structured their research to highlight children's suggestibility by providing simulated situations which give just the right circumstances for suggestible reactions from children. Goodman and Bottoms[53] use a different approach. While recognising that children can be prone to suggestibility Goodman and Bottoms have designed blind testing situations in which their second group highlight children's strengths and weaknesses. Their findings indicate that children can resist suggestible situations if they are in direct contradiction to their true experiences. While the results may appear divergent, these studies are valuable as they assist in this area of child credibility in sexual abuse cases and the process of how effectively to interview children, and ensure that false allegations are uncovered at this early stage.
These research programmes show that we have to implement new ways of questioning children, both in the videotaped interview situations and in the courtroom. Competence of questioning is the ability of adults to elicit, and children to provide, reliable information, in question and answer format, about potentially traumatic, self-disclosing events. Therefore effective communication between adults and children depends on the adults' abilities to talk to children in language and concepts that they can understand, and to mould questions to children's stages of language and cognitive development. However, legal professionals (lawyers and judges) receive little if no instruction on the norms of child development. Furthermore, the adversarial nature of the process may mean that individual questioners may be motivated by different agendas: the defence counsel for his or her client, and the prosecution for the State.
Professional interviewers face similar dilemmas in their positions and thus require constant skilling in the latest research results. These interviewers must be aware of the language of the child and be able not only to converse on a trust basis with the child, but to adhere to the stringent requirements of the law with regard to competency and credibility issues.
In conclusion it would appear that children, like adults, are suggestible, and it is the skill, sensitivity and questioning techniques of the interviewer that are essential in eliciting the truth in child witness accounts. However lawyers are critical of these skills and of the “truth” thus presented in court and often hone in on the interviewers’ questioning techniques and skills. In contrast:
[p]aradoxically, they do not seem to be in the least bit concerned about their own use of leading questions in cross-examination and the effects this may have on the quality of the child's evidence.[54]
The area of evidential interviews and the qualifications and skills required by the interviewers is one which engenders much argument from both prosecution and defence. It is an area where it can be difficult to recognise and understand the high level of skill necessary in achieving a legally acceptable interview, whilst at the same time responding to the needs of the child complainant for security and validation. This creates its own dilemmas in terms of child witness credibility. The tribunal of fact must weigh up the child's testimony and credibility. On the one hand, the child's testimony tells a story of hurt and anguish. On the other hand, the myths and stereotypes of society suggest that children are prone to lies, fantasy and distortion, which attacks the credibility of that testimony. In this area the sole expertise of the lawyer has been moved aside to allow room for other experts to enter, a development which appears not to have been easily or happily accommodated.
It appears that in the area of evidence relating to child victims of sexual abuse there is a continuing struggle between two competing factors. On the one hand there is the need to ensure a fair trial to both the accused and the complainant and to follow the procedures used to maintain this balance. On the other hand there is the reluctance of society as a whole to accept the reality of child abuse and its effects on the concept of the family unit; this reluctance can perpetuate the belief that children lie, fantasise and make false allegations.
The competency test is the law's way of perpetuating the latter belief. It has had an unwieldy past, and, though easier with the advent of the Evidence Amendment Act 1989 and Regulation 5(1)(c), the burden of testing the competency of the child is now placed on the interviewer, and, in some cases, the judge. The child complainant is still disadvantaged in this system before he or she ever gets to the interview stage or front door of justice. The competency test promotes the exact opposite of our adversarial justice system by continuing to offer the primary challenge to children that, before they are to be believed, before they get to tell their truth, they must be judged “truthworthy”. This is analogous to the French system where a person has guilt attached at the primary stage of the legal process and has to prove his or her innocence.
The competency issue reinforces societal disbelief of children. A young child, being scared and disorientated, with a well-meaning, qualified person in a strange room and environment, and with another person moderating the process and the filming of them, is bound to feel as if “they don't want to believe me”. This is especially so if, at the outset, the child is asked (in whatever kindly manner) if he or she knows the difference between truth and lies and can understand the concept of a promise.
The advocates of the abolition of the competency test state that a child's testimony is in fact the only real test of his or her competency. They argue that the judge and, in particular, the jury should be left to weigh up whether the child is telling the truth. In essence that is what a jury does: it decides who is telling the truth, the child or the offender.
It is submitted that the best course of action would be to dispense with the competency test. Alternatively, if the competency test is retained, it is submitted that a different process should be provided in law. For example, the law could provide actual ways in which the interviewer and the judge could ask relevant questions of the child to ascertain his or her understanding of the difference between truth and lies and the ability to promise. The law could also provide standard and ongoing training for interviewers who bear the initial burden of this test, with continuing training during their careers. This would create surety in a process and more certainty in the law.
Aligned with this training could be the training of judges in the process of accepting evidence from child witnesses, and how they can ascertain that a child can promise and that a child does know the difference between truth and lies. The establishment of a court-appointed and trained child advocate should also be examined, where such a lawyer would be trained in representing the child in court and at interview sessions.
Linked with this notion of child fantasy and distortion is that of credibility. Interviewers are scrutinised to test that they did not lead the child into false allegations by the use of leading questions. However, scientific psychological research has proven that asking leading questions is sometimes the most appropriate way to assist a child complainant to verbalise his or her abuse. The language of a child compared to an adult is still at an evolutionary stage, and, like statutes, needs interpretation to ascertain its true intent, meaning and spirit.
Until the justice system can allow more flexibility in this area of leading questions at the evidence-in-chief stage, the child witness might frequently be deprived of the right to justice. I am not advocating random unfettered leading questions, but rather a carefully devised system of questioning that could assist the truth to surface. Such a system or process should form part of standard training programmes for interviewers and judges alike to promote uniformity. Uniformity in turn gives emotional and physical boundaries which create safety for children who need to be able to trust in processes remaining known. As it is, the videotaped interview is not a process known to the child. The interviewer and the interview process could potentially abuse the child, who is perhaps naturally wary of information presently sought in such nebulous ways.
The legal issues of competency and credibility in the area of child victims of sexual assault are common in our criminal cases today, not only because these issues are those that bring challenges from both defence and prosecution lawyers, but also because of the media frenzy apparent in child abuse cases. There is much debate and much speculation as to how far the law will continue on its path of protecting child complainants. The reforms of 1989 have shown the legislature's willingness to scrutinise its own systems to provide better protection for victims. However, these reforms have not gone far enough.
Is it because child sexual abuse is a threat to the concepts of the ideal family and harmony that do not in reality exist? Is it because of the perpetuation of myths about children being liars, fantasizers and distorters of the truth? Is it that we as a society are scared of what we have begat, in that this crime exists and will not just go away?
The answers lie in two interconnected areas: the law and its ability to effect legal and social justice, and society whose pressures the law responds to and whose views in turn it shapes. Society's awareness of the reality of sexual abuse of children is shaped by the attitudes of those who have influence, by the education provided by those who work with survivors, by the publicity and public debate surrounding high profile legal cases of child sexual abuse and by a centuries-long history of denial. The law must continue to respond to new information and challenges, such as those discussed in this article, and it must do so quickly for the protection of our children.
[*] LLB (New South Wales), LLM (Canterbury), Lecturer in Law, University of Waikato.
[1] Bass, E and Davis, L The Courage to Heal (1988) 34-35.
[2] R v S [1992] NZCA 517; [1993] 2 NZLR 142, 144 (per Hardie Boys J).
[3] R v Brasier (1779) East PC 443.
[4] Ibid.
[5] This now appears as s 13 Oaths and Declarations Act 1957.
[6] R v Accused [1989] 2 NZLR 699.
[7] R v Accused [1991] 2 NZLR 649.
[8] Idem.
[9] R v Accused [1992] NZCA 425; [1992] 2 NZLR 673.
[10] Ibid, 676.
[11] Idem.
[12] R v MEF [1992] 2 NZLR 372.
[13] R v S [1992] NZCA 517; [1993] 2 NZLR 142.
[14] Supra note 12.
[15] Ibid, 150.
[16] Ibid, 152.
[17] Supra note 13.
[18] Supra note 12.
[19] Supra note 9.
[20] Ibid, 675.
[21] R v Neho, Court of Appeal, 27 November 1992 (per Casey, McKay and Thomas JJ).
[22] R v Crime Appeal , Court of Appeal, 29 March 1993 (CA 400/92: 404/92).
[23] R v Campbell, Court of Appeal, 17th November 1993 (per Henry J).
[24] At 4.
[25] Idem.
[26] At 5.
[27] R v S [1992] NZCA 517; [1993] 2 NZLR 142.
[28] At 149.
[29] R v Accused [1991] 2 NZLR 646 (6 CRNZ 345).
[30] At 652.
[31] Bussey, “Lying and truthfulness: Children's definitions, standards and evaluative reactions” (1992 ) 63 Child Development, 129-137.
[32] Supra note 13.
[33] Ibid, 150.
[34] Ibid, at 151 (my italics).
[35] Warner, “Child Witnesses: Developments in Australia and New Zealand” Paper published in Children 's Evidence in Legal Proceedings (Sydney University, 1988) 162.
[36] Ibid, 167. The Geddis Committee was an advisory committee on the investigation, detection and prosecution of offences against children. Its report was entitled A Private or Public Nightmare? (Department of Social Welfare, 1988).
[37] Birch “Children's Evidence” [1992] Crim LR 262, 264-5.
[38] Taylor, Geddis and Henaghan, “Obtaining Accurate Testimony from Child Victims” (1990) NZLJ 388.
[39] Goodman, Aman and Hirschman, “Child Sexual Abuse: Children's Testimony” in Ceci, S J Toglia, M and Ross, D (eds) Children's Eyewitness Memory (1987).
[40] Ibid, 17.
[41] Pipe, Gee and Wilson, “Cues, Propos and Context: Do They Facilitate Children's Events Reports” in Goodman, G and Bottoms, B (eds) Child Victims, Child Witnesses (1989).
[42] Bussey “Children's Lying and Truthfulness: Implications for Children's Testimony” in Ceci, S J, Leichtman, M D and Putnik, M (eds), Cognitive and Social Factors In Early Deception (1992), 104-5.
[43] Pipe, “Children's Testimony: Current Issues and Research” Paper presented at the Child as a Witness Seminar, University of Otago (1993)11-12.
[44] Saywitz, Nathanson and Snyder, “Credibility of child witnesses: The Role of Communicative competence” in Excellence in Children's Law, National Association of Counsel for Children (1994) 81.
[45] The Report of the Advisory Group on Video Evidence from the Home Office (Pigot Report) (1980), cited by McEwan, “In the box or on the box?” [1990] Crim LR 363, 365.
[46] Melton, "Children's Competency to testify" (1981) 5 Law & Human Behaviour 73, 79.
[47] Spencer, J and Flin, R The Evidence of Children, The Law and Psychology (1990) 241.
[48] R v Ellis [1993] NZHC 1783; [1993] 3 NZLR 317.
[49] NZPD Vol 489, 1987: column 282.
[50] Spencer and Flin, supra note 46, at 253.
[51] Cited idem.
[52] Ceci, S J and Bruck M, "Suggestibility of the child witness: A historical review and synthesis" (1993) 113 Psychological Bulletin 403-439.
[53] Goodman, G S and Bottoms, B L (eds) Child Victims, Child Witnesses: Understanding and Improving Testimony (1993).
[54] Spencer and Flin, supra note 46, at 257.
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